Forthcoming in a Michigan Law Review piece within a tribute issue honoring Yale Kamisar.

Abstract

In a famous 1958 article, Yale Kamisar brilliantly examined the hazards of abuse and of slippery slope extensions that subsequently, for 46 years, served to thwart legalization of physician-assisted death (PAD). This paper shows that during the same period law and culture have effectively accepted a variety of ways for stricken people to hasten death, with physicians involved in diverse roles. Those ways include rejection of nutrition and hydration, terminal sedation, administration of risky analgesics, and withholding or withdrawal of medical life support.
If these existing lawful modes of hastening death were widely acknowledged, the pressure to legalize voluntary active euthanasia and assisted suicide would diminish. These modes secure a relatively tranquil death after a maximum period of approximately 10 days lingering in an insentient state. At the same time, I contend, these lawful modes of hastening death are so akin to suicide and euthanasia as to render anomalous the present ostensible prohibitions of physician-assisted death. Perhaps it is time to acknowledge that not all forms of assisted suicide and active euthanasia are criminal and unethical.
And what about Yale Kamisar’s projections of abuse and distasteful extensions of voluntary medical decisionmaking? The 46 years of safe utilization of the above modes of hastening death belie the projection that PAD would ineluctably be abused. At the same time, current surrogate decisionmaking about end-of-life issues affecting now-incompetent patients tends to confirm Kamisar’s predictions about extensions of PAD to the chronically afflicted (as opposed to the terminally ill) and to incompetent patients. The thesis of this paper, though, is that these extensions, rather than being alarming, are a salutary part of making death with dignity a genuine possibility for fatally stricken persons.